Challenges and Opportunities Facing American Muslim Women
Part Four: Issues Regarding Family Law Affecting American Muslims: Dr. Azizah Al-Hibri
Part Four: Issues Regarding Family Law Affecting American Muslims: Dr. Azizah Al-Hibri
Moderator, Laila Al-Marayati:
That is our overview of the challenges and opportunities for Muslim women in America. Now, Dr. Al-Hibri is going to discuss issues regarding family law affecting American Muslims, because a lot of the things that have been brought up have a lot to do with the differences in legal systems of Muslims and of the United States. So, she is going to give some case studies and an overview.
Dr. Azizah Al-Hibri
Salamu Alaikum. Bismillah Arrahman Arraheem.
One thing Karamah noticed, and I think one reason we established Karamah--as well as the Muslim American Bar Association--in the United States is because we realized that there is a real need among the American Muslims to develop what we call legal literacy. There is really not much knowledge among the Muslim population in the United States about the law in the United States. And as a result of that, very often unfair situations could have been avoided had the person known about American law. So I would like to sensitize you to some of the issues relating to family law and tell you what courts have said about them. Essentially these apply in some cases to males and females, not just only to females.
My sisters talked about the issue of marriage to more than one woman and the effect of that legally. I also have cases that I brought with me which happen to involve what is called muta marriage. In one case which I will discuss, you might think about it as applying to a situation where a Muslim woman got into a regular marriage, not a muta marriage, without a civil marriage license. Why would a Muslim woman have a Muslim wedding ceremony without a civil license? Many reasons. One of them is illustrated in this case. A Muslim couple were married under both religious and civil law, and when they wanted to divorce, they divorced under Islamic law, but the wife found it too costly to pursue a divorce in civil courts. From her point of view, she was divorced, religiously. From the states point of view, she was still married. But she went ahead and married someone else Islamically. She could not register it with the state because the state saw her as already married. When the second husband misbehaved, she could not go and enforce her rights in court because she was not legally married in the United States. She could have avoided all that by simply finding a way through legal aid, or some other way in the community, to finalize her civil divorce. There is no reason why she should disadvantage herself.
Let me tell you about the case of the muta marriage I found. The reason I would like to discuss this case with you is because the courts reasoning can be detrimental to the woman in regular marriages. When the court does not find a civil marriage document, the first step is to say, alright, there is no legal marriage, but is there a putative marriage--a common law marriage? Then it goes through the reasoning. In this case, this happened in California in 1988. It is called In re the Marriage of Fereshteh R. and Speros Vryonis, Jr. In this case, the couple decided to marry, but because of their professional relationship (they were both professors in the same department) they found it a little bit uncomfortable to announce the marriage. So they went into muta marriage--which lasts for a period of time. But also they did not want to announce the marriage to the faculty, and wanted to keep their public relationship as before. The court actually looked at this and said, obviously there is no civil law marriage. They dont have that. Do they have a putative marriage? The court says, well, if they had gone through the formalities, or if the failure to do so was for some good reason, the court would understand. But is it possible for the wife to have a good faith belief that this is a marriage? If the wife could have a good faith belief, then the court would see it as a putative marriage. Well, a good faith belief must be reasonable. The court asks how could this belief be reasonable, then lists a variety of elements. One of the elements is whether the spouses had separate bank accounts. Now you know in a regular marriage, Muslim women are granted financial independence. In fact I know of cases that I will share with you where the Muslim woman after marriage refused to join her bank account with that of her husband based on her Islamic rights. The court in a Florida case saw that as bad faith on her part--that she is not serious about the marriage. I have seen the papers. The fact that a Muslim woman may refuse to take on her husbands name, which we know a lot of Saudis and other Muslim women do, that is viewed sometimes by the court as an indication that the marriage is not for real. In this case, for example, they looked at the finances. They said: "Fereshteh did not use [this guys] surname and nor did they commingle their finances." This approach could apply to any regular marriage. The court also looked at other things. There was no written document. Well, you know, were talking about a situation with no written documents. As a result, the court said that Fereshteh, the woman, could have had no reasonable belief that this is a marriage, and therefore there isnt even a putative marriage.
I am addressing this because I could see Muslim women for a variety of reasons entering an Islamic marriage contract, without the civil counterpart, keeping their finances apart, keeping their names apart, and the court would look at that, and with other indicia say there is no good faith belief here that there is a marriage. And, by the way if the court says that and you have children, you are stuck, because your children under American law become illegitimate. And that is something very important for Muslim jurists--they did everything to make sure that children have their rights. For example, under Islamic marriage you know you have to have a mahr or a dowry; but even if the husband does not deliver the mahr, that does not make the marriage void. A lot of people are unclear about that. The reason the jurists did this is because they wanted to make sure that the children under the marriage are legitimate. There are other remedies therefore for the woman to get her mahr if the husband does not give it to her.
The next thing I would like to move on to is the area of divorce. The area of divorce is very interesting under American law, because essentially judges do not understand what the whole Islamic framework of family law is about. They hear about it from distorted media, and that comes back and affects the rulings. And therefore groups like Karamah and other organizations are going to be active in trying to explain to these judges what is the significance of certain Muslim laws. Also depending on the state that you are in, the court decision is going to be either negative or positive. For example, New York tends to have a better understanding of Islamic law and things like the kitab than other states. So you better be sure which state youre in and what kind of laws that state has adopted on certain issues.
For example, in the case of Aziz v. Aziz, which is a New York case in 1985, the court looked at the Islamic marriage contract as a pre-nuptial agreement. Thats fine. And then it says, can we enforce a pre-nuptial agreement in this court? The problem was that the pre-nuptial agreement here was a religious agreement, and yet the courts in the United States are secular--theyre not supposed to enforce religious agreements. So the way they handled it in New York, because theyre very familiar with the kutuba, under the Jewish law, was to say that they would enforce the secular aspects of the agreement, rather than throw out the whole agreement. So, things like mahr will be enforced in New York.
Well, lets see what happened in another jurisdiction, in a case called Dajani v. Dajani. This is an Orange County case, 1988. In Dajani v. Dajani--this is a case of a Jordanian couple--the wife asked for divorce. We have no idea from the record why she asked for divorce. The court looked at her demand and listened to some experts, and decided that she is not entitled to her deferred dowry, mahr mutaakhir. You need to know this because, by the way, even if youre not living in the U.S., if you go to the U.S. for a few months, there might be a jurisdictional basis for bringing a case in the United States to resolve issues of this sort. Why did the court in Orange country decide that the woman is not entitled to her mahr? Well, because they brought experts on Jordanian law and Muslim law, and we dont know where these experts came from because, as you know, different people bring different experts. And this is what they said, Im reading from the case itself. The court says that, based upon the testimony:
This statement, by the way, jurisprudentially, is wrong. First of all, under Islamic law, its true that if there is no reason to ask for divorce, the wife forgoes the dowry but, for example, if her husband is harming her, there is the principle of darar (harm) which is in the jurisprudence of Muslims, and she can go and seek a judicial decree of divorce because of harm. That does not release the man from the payment of deferred dowry, or else you would be rewarding him for the darar or the harm he caused the woman. Plus, the parties cannot agree otherwise as to the basic laws of Islam. You cannot supersede Islamic law by agreement. So the court is quite confused here. The court continues:
Look why--now youll see the understanding of the court of what an Islamic kitab is. It says:
In other words, if you have an agreement which encourages you to divorce, thats against public policy. The court says that a kitab, an Islamic marriage contract, encourages the woman to divorce. Why? Because that kitab says that if she divorces, she will get money. So, in other words, to get money, she will be motivated to divorce. I would argue that by their logic, a kitab also encourages a woman to commit murder, because she will also get money upon the death of her husband (if she is not discovered). This is ridiculous. But that is exactly what the court says. Im reading from the court opinion:
This is profiteering by divorce, the court says, and therefore we will not allow it. And the wife lost her dowry. And we dont even have an idea, maybe she was entitled to it under Islamic law, but the court did not reach that level of sophistication in its analysis. Muslims ought to start engaging in legal education of the court system in the United States, about Islamic law and the personal status codes of Muslim countries, because were getting very weird results.
Let me now give you one other problem that I think is very important for Muslims in the United States to be aware of--and this applies to men too, because men think theyre smart and they can take care of things. Listen to this situation. Islamic jurisprudence historically has allowed, for a variety of reasons, the Muslim man to marry a non-Muslim woman. The Muslim man knows that he is responsible for his children, and the religious upbringing of the children. So many Muslim men in the United States, when they come to marry, have an oral agreement with the non-Muslim wife: "will you bring my children up as Muslims?" and she says, "of course."
Here is the most advanced decision by a court in the United States about such agreements--the most advanced, there are some which are not as advanced. It says:
Jabri v. Jabri (New York, 1993). So, anything you might do orally, or even in writing ahead of time, which is not a separation agreement or a court order, etc. about the religious upbringing of the children, is not going to count in court. So, what happens is whoever gets custody of the children, will be in charge of the religious upbringing of the children. Who is that in the United States? It is usually the mother. And since Muslim men are allowed to marry non-Muslim women, guess who is bringing up the child? A custodial, non-Muslim mother. And she has the full legal right under American law to educate them in her religion, and the father cannot say a thing. That is something to think about.
And, finally, there are two interesting cases: Malak v. Malak, and Amro v. Iowa District Court for Story County. One is a 1986 case, one is a 1988 case. This relates to the whole society, not just to women--and it affects children. In Malak v. Malak, a Muslim couple traveled and lived around the world, including the United States, Abu Dhabi, and Lebanon. Now, the interesting part about this, is that when the custody case came to the United States, there was already a custody decision in Abu Dhabi and a custody decision in Lebanon. What did the court say about the two custody decisions in the Muslim countries? First of all, let me say that the United States decides, state by state, on custody issues using the standard of the interest of the child. The courts look at what is the best interest of the child and they usually act accordingly. In the United States, they tend to think that the interest of the child is to give custody to the mother. Now, the court got a fax from the American embassy in Abu Dhabi, telling them what an Abu Dhabi court would do--what was the basis of the determination in Abu Dhabi. The embassy cable said that, invariably, the custody will go to the father, because there is an automatic rule which says "at age such and such, its to the mother; at age such and such, its to the father." The American court said: an automatic rule will not work in the United States, because it does not have anything to do with best interest of the child.
What did it do with the Lebanese decree, which is also a Shariah court decree? It took it a lot more seriously. And if our Muslim courts in the Arab world and other parts of the Muslim world know about this, then they can properly formulate their decrees so that they will be enforceable and respected on the principle of comity in American courts. First of all, the court in Lebanon gave notice to the defendant [wife] that there is a case pending against her. It gave her the opportunity to be heard--it gave a temporary injunction for fifteen days, and if she showed up, the court would reopen the case and hear everything. The court in America was impressed by the fact that there was procedural justice. The American court said: "if the Shariah court in Lebanon follows our standards of the best interest of the child, and they have procedural justice, then we will be willing to honor it through comity." And so, here is what the court said about the Lebanese court:
And then it gave some factors, for example:
It goes on for pages. But at least the Shariah law went through the considerations that are important for an American court. And therefore, while the Abu Dhabi decree was not even looked at in the United States--it had no procedural justice and it had no best interest of the child standard--the Lebanese Shariah court was taken very seriously, and in fact its decision was enforced on the basis of comity. And that tells us how we also have to educate the Muslim courts outside the United States.
There was another case from Gaza, Ali v. Ali (New Jersey, 1994), in which the husband said "in our country, this is how we do custody." And, he not only talked about the Gaza decree--which had no procedural justice and best interest of the child standard--but he tried to make an arrangement with his wife that they will drop the case in American courts, and relegate it to a group of Islamic scholars as to who gets the custody. The American judge heard about that and was incensed, and said that he would not relinquish jurisdiction to a bunch of Muslim scholars. That is, again, the separation of state and religion. What the husband should have done is to go to a court in a Muslim country which would then apply Islamic law using the proper terminology and the procedures which are examined critically in the United States, so that the decree of that Shariah court would be enforceable in America.
This is what I wanted to point out to you. Its not difficult for Muslims to get their rights in American courts, whether men or women. Its not difficult. You just have to know what the law is, how to approach it, how to speak the language, and how to present Islamic law so that it is not trivialized into something that sells women, or oppresses women, but get to the real, basic jurisprudence. I think we can move forward in the United States if we start speaking about Islam in that fashion. Thank You.